Silverstrim, Gary Mark

• Court: Court of Criminal Appeals of Texas
• Decided: October 5, 2011
• Docket: WR-76,382-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,382-01 EX PARTE GARY M. SILVERSTRIM, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 93-10-7155-CR IN THE 38^TH DISTRICT COURT

FROM MEDINA COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to ninety years' imprisonment. He did not appeal his conviction.

Applicant alleges his plea was involuntary because counsel failed to advise him of his rights, alternatives, advantages or disadvantages of pleading guilty. Applicant contends that his trial counsel rendered ineffective assistance by failing to investigate his history of mental illness, any possible insanity defense, and his competency to stand trial. He alleges that counsel was ineffective for failing to raise mitigating evidence at sentencing, such as his frontal lobe brain injury, the abuse he suffered as a child, and his mental health history. He alleges that counsel failed to inform him of his right to testify on his own behalf. He also alleges that counsel failed to adequately advise him of his right to appeal.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall obtain a response from Applicant's trial counsel regarding Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to all of Applicant's claims. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. When addressing ground three, the trial court shall make specific findings as to whether counsel explained Applicant's appellate rights and whether Applicant was denied the right to appeal his sentence. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: October 5, 2011

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